Citation Nr: 1415423
Decision Date: 04/08/14 Archive Date: 04/15/14
DOCKET NO. 10-03 230 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia
THE ISSUES
1. Entitlement to service connection for bilateral hearing loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for low back pain, to include as secondary to service-connected right patellectomy due to fracture.
4. Entitlement to service connection for chloracne, to include as secondary to exposure to herbicides.
5. Entitlement to an evaluation in excess of 20 percent for a right patellectomy due to fracture.
6. Entitlement to an evaluation in excess of 20 percent for diabetes mellitus (DM), type II, with nephropathy, hypertension, and erectile dysfunction.
7. Entitlement to a higher initial rating for the service connected coronary artery disease (CAD) status post-myocardial infarction, currently evaluated as non-compensably disabling from September 13, 2001 to June 18, 2002; 10 percent from June 19, 2002 to March 19, 2006; 100 percent from March 20, 2006 to June 30, 2006; 60 percent from July 1, 2006 to September 23, 2008; 30 percent from September 24, 2008 to February 12, 2010; 100 percent from February 13, 2010 to May 31, 2010; 30 percent from June 1, 2010 to May 27, 2012; 100 percent from May 28, 2012 to September 30, 2012 and 30 percent thereafter.
8. Entitlement to an effective date prior to January 12, 2009 for the service connection of peripheral neuropathy (PN) of the right lower extremity associated with DM, type II with nephropathy, hypertension, and erectile dysfunction.
9. Entitlement to an effective date prior to January 12, 2009 for service connection of PN of the left lower extremity associated with DM, type II with nephropathy, hypertension, and erectile dysfunction.
10. Entitlement to an effective date prior to January 12, 2009 for special monthly compensation (SMC) based on loss of use of a creative organ.
11. Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Veteran represented by: Robert W. Gillikin, II, Attorney
ATTORNEY FOR THE BOARD
S. Finn, Counsel
INTRODUCTION
The Veteran served on active duty from March 1968 to March 1971.
These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2009 and May 2011 rating decisions by the Huntington, West Virginia and Roanoke, Virginia, Regional Offices (RO) of the Department of Veterans Affairs (VA), respectively. The issues are now all under the jurisdiction of the RO in Roanoke, Virginia.
The appeal was remanded in August 2012 for a video conference hearing. The Veteran subsequently cancelled his hearing.
The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS systems to ensure review of the totality of the evidence.
The issue of entitlement to an effective date prior to September 13, 2001 for service connection of CAD is rephrased as an initial rating claim to better reflect the issue on appeal. (See February 5, 2013 e-mail from Veteran's attorney).
The issues of service connection for bilateral hearing loss, tinnitus, and low back pain; and a higher rating for right patellectomy, DM, CAD, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. A diagnosis of chloracne is not demonstrated by the evidence of record.
2. The Veteran's PN of the right lower extremity granted secondary to DM has been an adjudicated service-connected disability effectively since January 12, 2009, the date the Veteran was diagnosed with DM.
3. The Veteran's PN of the left lower extremity granted secondary to DM has been an adjudicated service-connected disability effectively since January 12, 2009, the date the Veteran was diagnosed with DM.
4. The Veteran's SMC based on loss of use of a creative organ secondary to DM has been effective since January 12, 2009, the date the Veteran was diagnosed with DM.
CONCLUSIONS OF LAW
1. Chloracne was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2013).
2. As there could be no claim prior to the date of diagnosis of DM (the basis for the grant of service connection), the criteria are not met for an effective date earlier than January 12, 2009, for the eventual grant of entitlement to service connection for PN of the right lower extremity as secondary to DM. 38 U.S.C.A. §§ 5105, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.400 (2013).
3. As there could be no claim prior to the date of diagnosis of DM (the basis for the grant of service connection), the criteria are not met for an effective date earlier than January 12, 2009, for the eventual grant of entitlement to service connection for PN of the left lower extremity as secondary to DM. 38 U.S.C.A. §§ 5105, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.400 (2013).
4. As there could be no claim prior to the date of diagnosis of DM (the basis for the grant of service connection), the criteria are not met for an effective date earlier than January 12, 2009, for the eventual grant of entitlement to SMC based on loss of use of a creative organ. 38 U.S.C.A. §§ 5105, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.400 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
The Veterans Claims Assistance Act (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim upon receipt of a complete or substantially complete application.
The VCAA notice requirements apply to all elements of a claim, including, when the claim is for service connection, the "downstream" disability rating and effective date elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 438 F.3d 1311 (2007). The earlier effective date claims, however, are "downstream" issue arising out of the original service-connection claim.
The Veteran was provided a letter in November 2008 and March 2009 that satisfied all notice requirements of § 3.159 and defined by Dingess and Pelegrini. Specifically, it covered what the evidence needed to show to establish his underlying entitlement to service connection and explained how VA determines a "downstream" disability rating and effective date when service connection is granted.
As here where some of the claims (i.e., earlier effective date claims) arose in the context of the Veteran trying to establish his underlying entitlement to service connection for a disability, and VA provided him the required notice concerning this underlying issue, and service connection was subsequently granted, the claim as it arose in its initial context has been proven and the intended purpose of the notice served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's General Counsel has clarified that no additional VCAA notice is required for a "downstream" issue including the effective date of the award. VAOGCPREC 8-2003, (May 5, 2004).
Rather than issuing an additional VCAA notice letter in this situation concerning the "downstream" earlier-effective-date claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue an SOC if the disagreement is not resolved. As the RO issued an SOC in October 2011, addressing the downstream claims for an earlier effective date, which included citations to the applicable statutes, regulations and a discussion of the reasons and bases for not assigning an earlier effective date, no further notice is required. Goodwin v. Peake, 22 Vet. App. 128 (2008); see also Huston v. Principi, 17 Vet. App. 195 (2003).
Regarding the duty to assist him with these claims, resolution of the earlier effective date claims turns primarily on when he first filed his claim for service connection for this disability and the date of diagnosis of DM, which was the basis for the grant of service connection. With regard to the claim for service connection for chloracne, the Veteran has shown no medical evidence of a diagnosis. Examinations and opinions are not needed to fairly decide these claims. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C). See also Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past).
All necessary development of the downstream earlier-effective-date claims and service connection claim for chloracne has been accomplished, and therefore appellate review of these claims may proceed without prejudicing the Veteran.
Service Connection for Chloracne
Generally, service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Direct service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet.App. 498 (1995).
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet.App. 303 (2007); see Savage v. Gober, 10 Vet.App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet.App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet.App. at 495-96; see Hickson v. West, 12 Vet.App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).
Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, is presumed to have been exposed to certain herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. Service in the Republic of Vietnam includes service in other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii).
The following diseases are associated with herbicide exposure for purposes of the presumption: chloracne or other acneform disease consistent with chloracne, Type II diabetes, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and certain soft-tissue sarcomas. A presumption of service connection based on Agent Orange exposure, however, is specifically not warranted for various disabilities, to include melanoma and non-melanoma skin cancer (basal cell and squamous cell). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Chloracne or other acneform disease consistent with chloracne must manifest to a degree of ten percent or more within one year after the last date of exposure to an herbicide agent. 38 C.F.R. § 3.307(a)(6).
The Veteran has verified service in Vietnam. Therefore, exposure to herbicides is presumed. (See DD Form 214). However, the Veteran's STRs are silent for complaints, diagnosis, or treatment of chloracne in service. Post-service treatment records do not reflect any diagnosis of chloracne.
The medical evidence of record shows that there is no present diagnosis of chloracne. Absent proof of the existence of the disability being claimed, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet.App. 223 (1992); Rabideau v. Derwinski, 2 Vet.App. 141 (1992). The law provides that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis may be negative. McClain v. Nicholson, 21 Vet.App. 319 (2007). However, where the overall record fails to support a diagnosis of the claimed disability, a grant of service connection is not appropriate.
The Board must assess the credibility and probative value of evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet.App. 429, 433 (1995); Wood v. Derwinski, 1 Vet.App. 190 (1991).
The preponderance of the competent and credible evidence shows that the Veteran does not have a diagnosis of chloracne. In making this determination, the Board finds it significant that the only evidence of record indicating a diagnosis of chloracne is the Veteran's assertions. The Veteran is competent to report that he has continued to experience observable symptoms (i.e., dry skin, etc.) since service. See Barr v. Nicholson, 21 Vet.App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); Layno v. Brown, 6 Vet.App. 465 (1994) (competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled, or tasted.).
However, the Veteran has submitted no competent medical evidence or opinion to corroborate this contention. See 38 C.F.R. § 3.159(a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements, or opinions). A diagnosis of chloracne requires more extensive medical knowledge and/or testing by a medical professional. Therefore, the Veteran's self diagnosis is not probative.
A symptom alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. There is no evidence that the Veteran has a confirmed diagnosis of chloracne. With respect to the claim that he has symptoms without an underlying pathology to which the complaints can be attributed, there is no basis to find a disorder for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet.App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted).
The preponderance of the evidence of record is against a finding that the Veteran has chloracne related to his military service and the appeal is denied.
Ealier Effective Dates for PN and SMC
The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i).
A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a). Any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. An informal claim must identify the benefit sought, however, but need not be specific. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The term "application" is used interchangeably with "claim" and defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). While VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. That is to say, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).
38 C.F.R. § 3.400(b)(2) provides that if a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose, whichever is later. Otherwise, any subsequent grant of benefits cannot be any earlier than the receipt of the eventually filed claim.
Once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization by VA or the uniformed services can be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. These provisions apply only when such reports relate to examination or treatment of a disability for which service connection has been previously established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital examination. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a).
The Court has held that a claimant's identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability . . . [and] it is the Secretary who know the provisions of Title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission."). Indeed, a claimant may satisfy the requirement of filing a claim for a particular disability by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim).
A claim of service connection for PN and SMC for loss of use of creative organ was inferred on January 22, 2010 when a VA examiner diagnosed PN and erectile dysfunction as a complication of DM. The Veteran was later granted service connection for these disorders secondary to his service-connected DM in a March 2011 decision, and the award was correctly made retroactively effective from January12, 2009, which was the date he was first diagnosed with DM and the effective date in which he was granted service connection for DM.
Because entitlement arose on the date of diagnosis of DM (and date that the application upon which service connection for DM was eventually awarded was filed with VA), the date of the claim must be used to establish the effective date. See Lalonde v. West, 12 Vet. App. 377 (1999) (the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was eventually awarded was filed with VA).
The preponderance of the evidence is against his claims for an effective date earlier than January 12, 2009, for the grant of service connection for PN and entitlement to SMC. The appeal of these claims are denied.
ORDER
Service connection for chloracne, to include as secondary to exposure to herbicides, is denied.
An effective date prior to January 12, 2009 for service connection of PN of the right lower extremity associated with DM, type II with nephropathy, hypertension and erectile dysfunction is denied.
An effective date prior to January 12, 2009 for service connection of PN of the left lower extremity associated with DM, type II with nephropathy, hypertension and erectile dysfunction is denied.
An effective date prior to January 12, 2009 for SMC based on loss of use of a creative organ is denied.
REMAND
The remaining issues on appeal are REMANDED for the following action:
1. The claims file should be reviewed to ensure that all notification and development action required by the VCAA is completed.
2. Provide the Veteran a VA examination for hearing loss and tinnitus. The VA examiner must consider the Veteran's assertions that he has experienced the symptoms of hearing loss and tinnitus since service. He is competent to report symptoms that are non-medical in nature.
3. Provide the Veteran with an orthopedic examination of his right knee by an appropriate physician to ascertain the current degree of severity of the service-connected residuals of the right patellectomy. All indicated studies, including X-rays and range of motion studies in degrees, should be performed. In reporting range of motion, the examiner should specifically identify any excursion of motion accompanied by pain. Tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should be described. The physician should be requested to identify any objective evidence of pain and to assess the extent of any pain. The physician should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. If this is not feasible, the physician should so state.
4. Provide the Veteran with an examination to determine whether the Veteran has a back disability that was caused or aggravated by any incident of active military service, to include secondary to his service-connected right knee disability. The examiner must take a complete history from the Veteran as to the onset, nature and progression of symptomatology related to his back. If there is a medical basis to support or doubt the history provided by the Veteran regarding his back, the examiner must state this, with a fully reasoned explanation.
5. Schedule the Veteran for an appropriate VA examination(s) to determine the nature and current severity of his service-connected DM, type II, with nephropathy, hypertension and erectile dysfunction.
All indicated tests and studies should be accomplished and the findings then reported in detail.
6. In light of the Veteran's recent heart attack, provide the Veteran with another VA examination to reassess the severity of his CAD. All indicated testing and evaluation should be conducted.
In addition to objective test results, the examiner should fully describe the functional effects caused by the CAD (and any other service connected disability) in his or her final report and the impact of such on the Veteran's potential employability.
In addressing the functional effects of the Veteran's CAD on his occupational functioning, generally, the examiner should consider his employment history, educational background, and day-to-day functioning. In forming the opinion, the examiner should disregard both the age and any nonservice-connected disabilities.
Specifically comment on the following, pertinent to a higher rating under 38 C.F.R. § 4.104, DC 7005: (a)the number of episodes of acute congestive heart failure in the past year, if any; and also whether the Veteran has chronic congestive heart failure; (b)the number of METs; (c)the level of METs that results in dyspnea, fatigue, angina, dizziness, or syncope, and; (d) whether the Veteran has left ventricular dysfunction, and if so, specify the percentage of ejection fraction.
7. Then readjudicate the claims in light of any additional evidence.
AS TO THE EVALUATION OF DIABETES MELLLITUS, THE RO'S ATTENTION IS CALLED TO NOTE (1) UNDER 38 C.F.R. § 4.119, DC 7913, providing that compensable complications of diabetes are to be separately evaluated unless they are part of the criteria used to support a 100 percent evaluation and noncompensable complications are considered part of the diabetic process.
If the claims are not granted to the Veteran's satisfaction, send him an SSOC and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of these claims.
The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs